Blackford . State, 11 Ohio St. 327. "Store-house" in-cludes a room occupied as a news depot. Barr v. State, 25Ohio St. 70. The name by which the structure must be described in the indictment is not the original designation of the structure when it was erected, or by which it may still be known, but must denote its substantial character as fixed by the use to which it is appropriated at the time of the breaking and entering. Thalls v. State, 21 Ohio St. 233. It is a felony to maliciously and forcibly break and enter in the night, with intent to commit a felony, or to steal any value, or to maliciously enter either day or night, with intent to commit a felony. The Indiana statute names "mansion-house, store-house, manufactory, office, shop, out-house, or boat." 2 Rev. Stat. (1876), 431. The Illinois statute includes all buildings, railroad cars, watercraft, or wharf-boats; and also includes "willfully and maliciously, without force (the doors or windows being open), entering, etc. Rev. Stat. (1877), 354. In Michigan, it is a felony, with various degrees of punishment, (1) to break and enter a dwelling-house in the night time, with intent to commit a felony therein, or having entered with such intent, to then break such dwellinghouse, any person being lawfully therein, the offender being armed with a dangerous weapon, or so arming himself in such house, or making an actual assault on any person lawfully therein; (2) to so break and enter, the offender not being so armed, nor so arming himself, nor making such assault; (3) to break and enter in the night time, with such intent, any office, shop, store, railroad depot, warehouse, mill, school-house, or factory, not adjoining or occupied with a dwelling, or any vessel within the body of a county; (4) to enter in the night time, without breaking, or to break and enter in the day-time, with such intent, any structure, etc., named in the preceding sections, the owner or other person lawfully therein being put in fear; and (5) if the act be as described in (4), except that no person lawfully therein is put in fear, it may be punished as a felony, or as a misdemeanor. Rev. Stat. (1871), 2080, 2081. In Iowa, it is burglary to break and enter a dwelling-house in the night time, with intent to commit a public offense; or having so entered, with such intent, to break such dwelling in the night. It is an aggravation of the crime if the offender be armed, or arm himself with a dangerous weapon, or actually assault a person lawfully therein, or have any confederate present, aiding and abetting. It is also felony to, with intent to commit any public offense, break and enter in the day-time, or enter without breaking in the night time, any dwelling-house, or at any time to break and enter any office, shop, store, warehouse, railroad car, boat, or vessel, or any buildings in which any goods, merchandise, or valuable things are kept for use, sale or deposit. Rev. Stat. (1873), 605. In Ohio, it is a misdemeanor to maliciously break and enter in the day time, with intent to steal; or, in the night season, to unlawfully break open and enter any house or watercraft in which any person resides or dwells, and commits or attempts to commit personal violence, or is so armed with a dangerous weapon as to indicate such intention; or in the day-time to unlawfully break open and en ter any such dwelling, and commit or attempt to commit any personal abuse. 74 Ohio L. 249.] Four points present themselves for consideration: the time, place, manner, and intent. i. Time.-Formerly great uncertainty existed as to what constituted night-whether it was the interval between sunset and sunrise, whether it included twilight, etc. The matter has been settled by statute. As far as regards burglary and other offenses treated of in the larceny act, the night is deemed to commence at nine o'clock in the evening, and to conclude at six o'clock on the following morning.(c) Both the breaking and the entering must take place at night. If either be in the day-time, it is not burglary. But the breaking may take place on one night, and the entering on another, provided that the breaking is with intent (e) 24 and 25 Viet, c. 96, 1 to enter, and the entering is with intent to commit a fel ony.(d) [For the purpose of this distinction, the night, in very ancient times, was deemed to begin with the setting and end with the rising of the sun; but the common-law rule now is, and for a long time has been, that those portions of the morning and evening in which, while the sun is below the horizon, sufficient of his light is above for the features of a man to be reasonably discerned, belong to the day. Light reflected from the moon is not to be taken into account; therefore, it is not always day when one's face may be seen. The law recognizes no middle space between day and night; but, when one begins, the other ends." 1 Bishop Crim. Law, § 293, where the authorities are cited. The same statement is given by Gabbett. 1 Crim. Law, 169.] ii. Place. It must be the dwelling-house of another. To constitute a dwelling-house, for the purposes of the statute dealing with burglary and similar offenses (the larceny act), the house must be either the place where one is in the habit of residing, or some building between which and the dwelling-house there is a communication, either immediate or by means of a covered and inclosed passage leading from the one to the other; the two buildings being occupied in the same right.(e) It must be the house of another; therefore, a person can not be indicted for a burglary in his own house, though he breaks and enters the room of his lodger, and steals his goods. The decisions as to what places satisfy the requirements of burglary have been numerous, and, to some extent, conflicting. We may gather the following facts: The building must be of a permanent character; therefore, a tent or booth will not suffice, although the owner lodge there. The tenement need not be a distinct building; thus, chambers in a college or inn of court, will suffice. As to the nature of the residence which is necessary. (d) R. v Smith, R. & R. 417. (e) R. v. Jenkins, R. & R. 224; 24 and 25 Vict., c. 96, 8 53. The temporary absence of the tenant is not material, if he has an intention of returning, though no one be in during the interval. It will suffice if any of the family reside in the house, even a servant, (f) unless the servant is there merely for the purpose of protecting the premise.(g) It seems that sleeping is necessary to constitute residence.(h) In the case of hiring a part of a house, the part let off may be considered as the dwelling-house of the hirer, if the owner does not himself dwell in the house, or if he and the hirer enter by different doors; that, is, of course, provided that the hirer satisfies the other requirements of residence given above. If he does not, the place can not be the subject of burglary at all; it is not the dwelling-house of the lodger or tenant, because there is no residence; nor of the owner, because it is severed by the letting.(i) But, if the owner himself, or any of his family, lie in the house, and there is only one outward door at which they and the lodger enter, the lodger is regarded as an inmate, and, therefore, the house must be described as that of the owner.(k) At common law, a church might be the subject of burglary; but this case is now specially provided for by statute.(1) iii. Manner. There must be both a breaking and an entering. As to the breaking.-It must be of part of the house; therefore, it will not suffice, if only a gate admitting into the yard is broken. But the breaking is not restricted to the breaking of the outer walls, or doors, or windows; if the thief gains admission by the outer door or window being open, and afterward breaks or unlocks an inner door, for the purpose of plundering one of the rooms, it is burglary.(m) This will apply especially to the case of servants, lodgers, etc., who are lawfully in the house. Breaking (f) R. v. Westwood, R. & R. 495. (g) R v. Flannagan, R. & R. 187. (h) R. v. Martin, R. & R. 108. (i) v. Arch. 523, 524, and cases quoted there. (k) v. R. v. Rogers, 1 Leach. 89. (7) v. p. 211. chests or cupboards does not satisfy the requirements of burglary. The breaking is either actual or constructive. Actual, when the offender, for the purpose of getting admission for any part of his body, or for a weapon or other instrument, in order to effect his felonious intention, breaks a hole in the wall of a house, breaks a door or window, picks the lock of a door, or opens it with a key, or even by lifting the latch, or unlooses any other fastenings to doors or windows which the owner has provided.(n) It is not burglary if the entry is made through an open window or door, or through an aperture (other than a chimney), provided that the thief does not break any inner door. Nor is raising a window which is already partly open; but it has been decided that the lifting the flap of a cellar which was kept down by its own weight was burglary.(0) [To push open a closed but unfastened transom, over the top of an outer door, is a breaking, although the transom has a button or catch for the purpose of fastening it.(1)] The breaking is constructire, where admission is gained by some device, there being no actual breaking. As, for example, to knock at the door and then rush in under pretense of taking lodgings, and fall on and rob the landlord; or to procure a constable to gain admittance in order to search for traitors, and then to bind the constable and rob the house. These are breaches sufficient to constitute burglary, for the law will not suffer itself to be trifled with by such evasions.(p) So for servants to conspire with a robber, and let him into the house at night, is a burglary in both. To obtain admission to a house by coming down the chimney is sufficient, for the chimney is as much closed as the nature of things will admit; but getting through a hole in the roof left to admit light is not. (q) As to the entry.-The least degree of entry with any part of the body, or with any instrument held in the hand, will (n) 3 Inst. 64; 1 Hale, P. C. 552. (0) R. v. Russell, 1 Mood. C. C. 377. (p) 4 Bl. 226. |